Reserved on 12.2.2021 Delivered on 12 .4.2021 Case :- SECOND APPEAL DEFECTIVE No. - 18 of 2021 Appellant :- Vasudeva and another Respondent :- Shiva Yogi (Deceased) And 7 Others Counsel for Appellant :- Shyam Sunder Maurya Counsel for Respondent :- Gyanendra Prasad Mahant
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellants.
2. The defendant-appellants have assailed the judgement and decree dated 25.3.2009 passed by 1st Additional Civil Judge (Jr. Division), Mohammadabad, Ghazipur in Original Suit No. 678 of 1989 (Shiva Yogi Vs. Vasudev) decreeing the suit of plaintiff- respondents and judgement dated 8.12.2020 passed by the Special Judge (E.C.Act)/4th Additional District Judge, Court No. 4, Ghazipur in Civil Appeal No. 35 of 2009 (Vasudev and others Vs. Shiva Yogi and others) dismissing the appeal of the defendant-appellants.
3. The plaintiff-respondents have instituted a suit for permanent injunction, demolition and possession in respect of Plot Nos. 90 & 91 marked as 'ABCD' in the map enclosed with the plaint. The suit has been instituted by the plaintiff-respondents inter-alia on the ground that the plaintiff-respondents are the owner and in possession of Arazi No. 91 rakba 0-3-19 and Arazi No. 90 rakba 0-4-18 situated at Village Bhadaura Pargana Mohammadabad, District Ghazipur (hereinafter referred to as "property in dispute").
4. The aforesaid suit was contested by the appellants contending inter-alia that the plaintiff-respondents are not the original resident of Village Bhadaura Pargana Mohammadabad, District Ghazipur; they are resident of Village Paharipur, Pargana Mohammadabad, District Ghazipur. It was further stated that the Plot No. 90 of Village Bhadaura Pargana Mohammadabad, District Ghazipur was owned by one Nakchhedi and Anuradh son of Kungi and Plot No. 91 was owned by Ram Kishun son of Ram Baran. Nakchhedi, Aniruddh and Ram Kishun had left the Village Badaura since about 20 years ago and had gone to District Bhagalpur, State-Bihar. They are not traceable. Nakchhedi, Aniruddh and Ram Kishun had died issueless. It was further stated that the plaintiff-respondent are not from family of Nakchhedi, Aniruddh and Ram Kishun. Further case of the defendent-appellants was that the plaintiff-respondents somehow got their name recorded in the revenue record under Section 34 of the Land Revenue Act by order dated 26.7.1986 which order has been set aside by order dated 8.8.1990. It was further stated that the defendent-appellants were residing in the property in dispute since last 20 years.
5. On the basis of pleadings of the parties, the trial court framed as many as 8 issues which reads as under:-
“1- क्या जमीन नेजाई िन० ह० ए-बी-सी-डी मुजािहरा नक्शा अर्जी नािलिश आ० नं०-90 व 91 वाका मौजा-भदौरा, परगना-मुहम्मदाबाद, िजलिा-गाजीपुर व उसमे ित स्थित तमाम चीजों का स्वामी व अर्िधिपत्यभोगी वादी है?
2- क्या िववािदत भूमिम मे तामीरात िशकायती ध्वस्त होने योग्य है?
3- क्या िववािदत भिूम म से वादी कब्जा पाने का अर्िधिकारी है?
4- क्या दावा वादी मे नानज्वाइन्डर आफ नेसेसरी पाटी का दोष है?
5- क्या दावा वादी कालि बािधित है?
6- क्या दावा वादी मौन सम्मित एवं िववन्धिन के दोष से बािधित है?
7- क्या दावा वादी को श्रवण का क्षेत्रािधिकार इस न्यायालिय को प्राप्त है?
8- अर्न्य अर्नतोष?”
6. On the issue No. 1, the trial court held that the burden was upon the plaintiff-respondent to prove the issue No. 1. The trial court after noticing the statement of PW-1 (Bansidhar) and PW-2 (Pandit) and also documentary evidence namely paper No. 54-ga 'Nakal Khatauni' of Village Bhadaura Pargana Mohammadabad, District Ghazipur, fasli year 1405-1410 found that the name of plaintiff-respondents is recorded in respect of aforesaid property.
The trial court noticed that the PW-1 (Bansidhar) in his testimony has categorically stated that the defendent-appellants have no concern with the property in dispute. The trial court also considered in detail the testimony of DW-1 (Basudev) (defendent-appellant) and DW-2 (Dev Nandan). The trial court found that the DW-1 (Basudev) in his testimony has stated that the name of Nakchhedi, Aniruddh and Ram Kishun is still recorded in the revenue record and plaintiff-respondent is not from family of Nakchhedi, Aniruddh and Ram Kishun. The trial court noted that the defendent-appellants have filed paper No. 58-ga which shows that the order dated 26.7.1986 was set aside by order dated 8.8.1990 and the suit has been restored to its original number, but that is of no help to plaintiff. The trial court found that the plaintiff-respondents have filed Intekhaf Khatauni of Arazi Nos. 90 and 91 in which name of Shiva Yogi is recorded which establishes that the plaintiff respondent has inherited the Arazi Nos. 90 & 91. It further noted that the plaintiff-respondents have also filed paper No. 54-ga Khatauni of Village-Bhadaura Pargana Mohammadabad, District Ghazipur of fasli year 1405-1410 wherein the name of plaintiff- respondents have been record.
7. On the basis of the aforesaid finding, the trial court held that the plaintiff-respondents have proved their case, and accordingly it decided the issue No. 1 in favour of plaintiff-respondents.
8. On the issue No. 2, it found that the defendent-appellants have encroached upon the property in dispute and has raised construction over it against the wishes of plaintiff-respondents. Accordingly, it passed an order of demolition. It also held in deciding the issue No. 3 that the plaintiff-respondents are entitled to possession of the property in dispute.
9. The appeal court has also affirmed the finding of the trial court on the Issue No. 1. While affirming the finding on Issue No. 1, it has also considered paper No. 62-ga, order dated 22.7.2014 of Board of Revenue. The appellate court recorded a finding that the persusal of the said order does not indicate that it is in respect of the property in dispute. The appellate court further noticed the fact that if the order dated 26.7.1986 mutating the name of the plaintiff- respondents was set aside by the order dated 8.8.1990, and thereafter, the name of the defendent-appellants have been recorded, then they should have brought the relevant document on record in evidence to establish that their names have been entered in revenue record, which they utterly failed to do. The appellate court also considered the khatauni of fasali year 1423-1428 in respect of property in dispute which shows that after death of Shiva Yogi, plaintiff-respondent, the name of his heirs have been recorded. On noticing the aforesaid evidence in addition to evidence considered by the trial court, the appellate court held that the plaintiff- respondents are owner and in possession of the property in dispute and accordingly, it affirmed the finding of the trial court.
10. Challenging the aforesaid orders, the counsel of the appellants has advanced two submissions; that on the date of institution of suit, the name of plaintiff-respondents was not recorded in revenue record, therefore, the suit of injunction was not maintainable. Secondly, when there is a serious dispute of title, the suit for injunction is not maintainable and the proper remdey for the plaintiff-respondents was to file a suit for declaration. In support of his second submission, counsel for the appellant has placed reliance upon judgment of Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (dead) by L.Rs. & others, AIR 2008 SC 2033.
11. I have heard the counsel for the appellants and perused the record.
12. The trial court as well as appellate court while deciding the issue of ownership on the basis of documentary evidence led by the plaintiff-respondents noticed that the name of the plaintiff- respondents is recorded in the revenue record. The documentary evidence namely paper No. 10-ga and 54-ga i.e. khatauni of fasli year 1405-1410 and also khatauni for the fasli year 1423-1428 proves that the name of plaintiff-respondents are recorded in the revenue record in respect of disputed property. Intekhaf-khatauni paper No. 10-ga also shows that the plaintiff-respondents has received the property in dispute by inheritence. The defendent- appellants did not file any documentary evidence rebutting the aforesaid documentary evidence led by the plaintiff-respondents nor had disputed its genuineness. In such circumstances, in the opinion of the court, the court below has rightly believed the documentary evidence of the plaintiff-respondents. The appellate court further noticed that after the order dated 8.8.1990 was passed, no documentary evidence was brought on record by the defendent- appellants to show that their name has been recorded in the revenue record.
13. Counsel for the appellants also could not point out from the judgement of the court below that the finding of the court below based on the evidence of plaintiff-respondents that the plaintiff- respondents are the owner of the property in dispute is perverse or against the record, and thus, the finding in respect of title is a finding of fact, and this Court does not find any substance in the first submission of counsel for the appellants that on the date of institution of suit, the name of plaintiff-respondents were not recorded in the revenue record, therefore, the suit for injunction was not maintainable.
14. The second submission advanced by the counsel for the appellants that when there was serious dispute of title, the remedy for the plaintiff-respondents was to institute a suit for declaration is also not sustainable for the reasons that both the court below on the basis of evidence on record found the title of the plaintiff- respondents over the property in dispute, and the finding being finding of fact cannot be interefered with by this Court under Section 100 of CPC. Since the plaintiff-respondents have established that they are owner of the property, therefore, in the opinion of the Court, the suit for demolition and injunction was maintainable and the judgement of the Apex Court in Anathula Sudhakar (supra) is not applicable in the facts of the present case.
15. For the reasons given above, there is no substantial question of law arises in the present second appeal which needs to be answered by this Court.
16. Accordingly, the second appeal lacks merit and is dismissed, without any order as to costs.
Order Date :- 12.4.2021 Jaswant